12 Comments

Whew! We agree completely on something! Great argument.

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Thank you! My view has not been very popular on Twitter (although that shouldn't be surprising, I guess).

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Your observation that this will tar the entire class of clerks ought to be persuasive to the leaker if their interests are sincerely communitarian. Another way to read this all is what it may say about changing norms in the legal profession.

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Well done David. As a SCOTUS clerk from the antediluvian period, I feel hopelessly naive in believing that such a breach of trust could never occur. Never. Unthinkable. It was to my contemporaries and me a matter of fidelity to our constitutional structure, the Court and our individual Justices. I know my co-clerks would agree. We understood that the person in the black robe was appointed by the President and confirmed by the Senate. The miscreant will be apprehended, I’m sure, and he or she will be revealed as weak of character and honor. But the more fundamental question concerns the origins of that clerk’s self-view as paramount to matters of constitutional integrity and personal honor. Shine the light on his or her law school and undergraduate university, and ask the clerk’s parents themselves to address the shortcomings of their child’s upbringing. All assuming, of course, that it was a clerk’s breach and not that of a Justice or a member of the Court’s support staff. Thanks.

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Is it commonplace in internal federal employment investigations to request personal phone records?

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Good question, and one that I don't know the answer to. But phone records are commonly reviewed in all sorts of other investigations, especially criminal ones (even though this is not a criminal case, as I note in my story).

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I ask because I conduct employment investigations for non-federal public entities and we can’t get at personal phone records in my state - I didn’t know if this type of request is permitted by federal law.

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Interesting! Does that mean you can't even ask for employees to turn them over voluntarily, without any threat of firing for noncompliance?

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That is correct. We have to be able to prove the misconduct based on our own records. But the standard is preponderance of the evidence, so it’s not especially high.

Edit: we do have situations where people voluntarily give things like personal texts, but they are not asked to do so.

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I’ll read this later, but wanted to note that the clerks should be threatened with termination (before the term is over). That might force the culprit to confess too.

In lieu of sharing personal information, the clerks should be threatened with termination if they refuse to deny to an agent (under 18 USC 1001) that they weren’t the leaker and don’t know who the leaker is.

Sprechen sie deutsch?

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Yep, concur. No wonder I’m subscribed. High-level and logical.

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I think the baseline norm against self-incrimination to the police overrides any kind of loyalty to an employer.

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